J-A24006-23 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

PENN OUTDOOR SERVICES, LLC 

 v. 

HARLEYSVILLE INSURANCE 

COMPANY OF NEW JERSEY AND 

WHARTON, LYON & LYON 

APPEAL OF: WHARTON, LYON & 

LYON D/B/A WHARTON ATLANTIC 

A/K/A WHARTON INSURANCE A/K/A 

WHARTON GROUP 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 2921 EDA 2022 

Appeal from the Judgment Entered October 12, 2022 

In the Court of Common Pleas of Philadelphia County 

Civil Division at No: 191003027 

BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J. 

MEMORANDUM BY STABILE, J.: FILED JUNE 27, 2024 

Appellant, Wharton, Lyon & Lyon d/b/a/ Wharton Atlantic a/k/a Wharton 

Insurance a/k/a Wharton Group (“Wharton”), appeals from the October 12, 

2022 judgment entered against it and in favor of Appellee Penn Outdoor 

Services (“Penn”).1 We affirm. 

The record reveals that Penn agreed by contract to provide snow 

removal services for an apartment complex located in Princeton, New Jersey. 

Penn subcontracted that job to Longford Landscape and Excavation 

____________________________________________ 

1

 Harleysville Insurance Company of New Jersey has been dismissed from this 

action and is not participating in this appeal. 
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(“Longford”). The contract between Penn and Longford included a hold 

harmless clause in Penn’s favor with regard to the work to be performed by 

Longford pursuant to the contract. Therefore, the Penn/Longford contract 

required from Longford a certificate of insurance (“COI”) naming Penn as an 

additional insured under Longford’s applicable liability insurance policy. 

Wharton is Longford’s insurance broker, and Harleysville Insurance Company 

(“Harleysville”) is Longford’s liability insurer. Wharton provided the COI to 

Penn. 

The instant action was precipitated by a slip and fall at the Princeton, 

New Jersey apartment complex. Asya Ghant was injured there on February 

10, 2017, and filed suit in Mercer County, New Jersey, against Penn and other 

parties. Penn sought defense and indemnity from Longford and Harleysville, 

but Harleysville denied coverage, claiming that the Ghant litigation discovery 

process revealed that Ghant’s injuries were due to Penn’s independent 

negligence. Harleysville also claimed that Penn’s insurance under its policy 

was not primary, but excess coverage to Penn’s own insurance because the 

Penn/Longford contract did not specify otherwise. Harleysville contended that 

Longford was compliant with its contractual obligations to Penn by procuring 

excess coverage. 

Penn eventually settled Ghant’s suit for $650,000.00 after having 

incurred more than $200,000.00 in legal fees. On October 25, 2019, Penn 

filed the instant lawsuit against Harleysville and Wharton alleging breach of 
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contract, equitable reformation of contract, negligence, and bad faith (42 

Pa.C.S.A. § 8371). A jury verdict of $713,600.00 in Penn’s favor was entered 

on April 6, 2022. On April 13, 2022, Wharton filed a motion for j.n.o.v. and/or 

a new trial. The trial court heard oral argument on Wharton’s motion on 

September 21, 2022, and denied relief at the conclusion of argument. The 

verdict was reduced to judgment on October 12, 2022. This timely appeal 

followed. 

Wharton presents five questions: 

1. Whether the trial court erred and/or abused its discretion in 

finding that judgment n.o.v., or else a new trial, was not 

required despite the material variance between the pending 

complaint and the substance of the comes on which the case 

was tried to verdict? 

2. Whether the trial court erred and/or abused its discretion in 

finding that judgment n.o.v., or else a new trial, was not 

required despite the evidence wholly establishing that [Penn] 

was an additional insured under the Harleysville policy, and 

wholly disproving the assertion that any other type of 

additional insured endorsement would have provided coverage 

to [Penn] for the underlying claim. 

3. Whether the trial court erred and/or abused its discretion in 

finding judgment n.o.v., or else a new trial, was not required 

despite the overwhelming proof that Wharton did not 

misrepresent—negligently or otherwise—any fact on the [COI], 

but that it rather stated the facts-of-coverage clearly and 

accurately, as admitted by [Penn’s] own expert at trial. 

4. Whether the trial court erred and/or abused its discretion in 

allowing [Penn’s] expert, over objection , to testify as to his 

interpretation of an insurance contract, and in thereafter 

denying Wharton’s request for a new trial. 

5. Whether the trial court erred and/or abused its discretion in 

denying a new trial and rejecting Wharton’s contention that the 

jury’s verdict was against the weight of the evidence. 
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Wharton’s Brief at 4-5. 

We begin by setting forth the strictures governing our review. We 

reverse an order denying a j.n.o.v. motion only if we conclude that the trial 

court committed an error of law or abuse of discretion that controlled the 

outcome of the case. Greco v. Myers Coach Lines, Inc., 199 A.3d 426, 430 

(Pa. Super. 2018). 

There are two bases upon which a [JNOV] can be entered; 

one, the movant is entitled to judgment as a matter of law and/or 

two, the evidence is such that no two reasonable minds could 

disagree that the outcome should have been rendered in favor of 

the movant. With the first, the court reviews the record and 

concludes that, even with all factual inferences decided adverse 

to the movant, the law nonetheless requires a verdict in his favor. 

Whereas with the second, the court reviews the evidentiary record 

and concludes that the evidence was such that a verdict for the 

movant was beyond peradventure. 

[...] 

The proper standard of review for an appellate court when 

examining the lower court’s refusal to grant a [JNOV] is whether, 

when reading the record in the light most favorable to the verdict 

winner and granting that party every favorable inference 

therefrom, there was sufficient competent evidence to sustain the 

verdict. Questions of credibility and conflicts in the evidence are 

for the trial court to resolve and the reviewing court should not 

reweigh the evidence. 

Id. 

Wharton’s first assertion of error is that j.n.o.v. was warranted because 

of a material variance between Penn’s complaint and the substance of the case 

it presented to the jury. Wharton claims that Penn pled that Wharton failed 

to make Penn an additional insured on Longford’s Harleysville policy but then 
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tried the case on an entirely different theory—that Penn was an additional 

insured, but that Penn’s coverage was improperly subject to limitations that 

excluded coverage of Ghant’s alleged injuries. Wharton’s Brief at 16. 

A variance denotes difference and in reference to legal 

proceedings[,] it refers to a disagreement or difference between 

the allegations made and the proof shown, not in the sense that 

there is a failure of proof, but that, contrary to the fundamental 

principle of good pleading and practice, the proof fails to materially 

correspond to the allegations. A material variance consists of a 

departure in the evidence from the issues on which the cause of 

action must depend. 

For purposes of determining whether a claimed or apparent 

discrepancy between pleadings and proof constitutes a variance, 

the entire pleadings and evidence should be considered. 

Generally, in order to constitute a variance, the discrepancy must 

exist between the allegations and proofs of the particular party, 

with the result that a party is not permitted to introduce evidence 

that is inconsistent with or fails to correspond to the allegations 

made by that party. 

The modern rules of pleading and practice are relatively 

liberal. Consequently, the impact of variance may be diminished 

by the preference for a liberal[,] if not informal[,] evaluation of 

pleadings emphasizing the determination of cases based upon 

their merits rather than based on mere technicalities, which 

policy, for example, may allow a party to cure a variance by 

offering, during or after trial, to amend the pleadings to conform 

to the proof. 

General pleading allegations which are not objected to 

because of their generality, may have the effect of extending the 

available scope of a party’s proof, such that the proof would not 

constitute a variance, beyond that which the party might have 

been permitted to give under a more specific statement. 

Young v. Lippl, 251 A.3d 405, 418 (Pa. Super. 2021) (quoting Graham v. 

Campo, 990 A.2d 9, 13-14 (Pa. Super. 2010), appeal denied, 16 A.3d 504 

(Pa. 2011)). A variance between pleadings and proof will be considered 
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material if the defendant has been misled; that is, if the proof imposes a 

different burden on the defendant and/or sets up a different cause of action 

than the one alleged. Id. 

We begin with a review of Penn’s amended complaint. Penn alleged that 

its contract with Longford, wherein Longford promised to hold Penn harmless 

from claims arising out of Longford’s duties under the contract, was an 

“insured contract” under Longford’s Harleysville policy. Amended Complaint, 

11/25/20, at ¶¶ 9-10. Penn also alleged that its contract with Longford 

required Longford to name Penn as an additional insured on the Harleysville 

policy. Id. at ¶ 11. Penn alleged that it “reasonably expected [...] that 

Longford’s Harleysville Policy would afford it primary, non-contributory 

coverage as an additional insured for claims arising out of Longford’s work.” 

Id. at ¶ 12. 

Penn attached the pertinent documents to its amended complaint. The 

contract between Penn and Longford is attached as Exhibit B to Penn’s 

amended complaint and provides: 

Subcontractor agrees to indemnify and save and hold 

harmless Penn and Penn’s clients/customers from and against all 

claims for damages arising out of the performance of 

Subcontractor’s duties under this Agreement and agrees to, at 

Subcontractor's expense, defend any suit or action brought 

against Penn or Penn’s clients/customers on account of such claim 

or damage. 

Id. at Exhibit B, ¶ 7(a). Penn’s coverage as an additional insured under 

Longford’s Harleysville policy was to be set forth in an endorsement. Id. at 
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Exhibit B, ¶ 7(b). Endorsement CG-7524 to Longford’s Harleysville policy, 

attached to Penn’s amended complaint as Exhibit C, provides, among other 

things, that an additional insured is an organization for whom Longford works 

under a “written contract.” Id. at Exhibit C, ¶ A. The additional insured is 

insured with regard to liability caused “in whole or in part” by Longford. Id.

at Exhibit C, ¶¶ A, B. Regarding other insurance, endorsement CG-7524 

provides, “If specifically required by the written contract or agreement 

referenced in Paragraph A above, any coverage provided by this endorsement 

to an additional insured shall be primary and any other valid and collectible 

insurance available to the additional insured shall be non-contributory with 

this insurance.” Id. at ¶ D.1. 

Penn alleged that Wharton provided a COI identifying Penn as an 

additional insured per endorsement CG-7524. Id. at ¶ 26, Exhibit H.2 Penn 

alleged that, by issuing the COI, Wharton led Penn to believe that it was an 

additional insured under Longford’s Harleysville policy. Id. at ¶ 32. Penn 

further alleged that Wharton’s failure to secure coverage for Penn as an 

additional insured led to Harleysville’s denial of Penn’s claim. Id. at ¶ 36. 

In summary, Penn expressly alleged, in ¶ 12 of its complaint, that it 

believed its coverage as an additional insured under Longford’s Harleysville 

policy would be primary and non-contributory. We are cognizant of Wharton’s 

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2

 The COI is attached to Penn’s Amended Complaint as Exhibit H. 
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arguments that the hold harmless clause in ¶ 7(a) of the Penn/Longford 

contract did not expressly use the terms primary and non-contributory, and 

that endorsement CG-7524 provided that the additional insured coverage 

would be primary if “specifically required” by the underlying contract. But in 

discerning the existence of a material variance between the complaint and 

trial strategy, we are to undertake a “liberal, if not informal” view of the 

pleadings, rather than place undue emphasis on technicalities. Young, 251 

A.3d at 418. Because Penn’s complaint expressly alleged that it reasonably 

expected its coverage to be primary and noncontributory,3 we discern no 

material variance between Penn’s complaint and its trial strategy. Wharton’s 

first argument fails. 

Next, Wharton argues that the trial court should have granted j.n.o.v. 

because the evidence established that Penn was an additional insured, as 

required by the Penn/Longford contract, and therefore Wharton discharged its 

obligations to Penn. Instead, Wharton believes the trial evidence established 

that Penn was not covered for the Ghant claim despite its status as an 

additional insured under Longford’s policy, because the Ghant claim arose 

from Penn’s independent negligence. This argument piggybacks on Wharton’s 

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3

 Wharton’s reliance on Reynolds v. Thomas Jefferson Univ. Hosp., 676 

A.2d 1025 (Pa. Super. 1996), appeal denied, 700 A.2d 442 (Pa. 1996), 

wherein the plaintiff in a medical malpractice suit shifted strategy during trial 

to challenge actions of a different doctor than the one against whom he alleged 

malpractice in the complaint, is misplaced. Here, Penn tried the case as 

alleged against the named defendants. 
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previous argument that Penn’s complaint addressed only the existence, rather 

than the scope, of its coverage under Longford’s policy. Because we have 

already rejected that argument, and because Appellant cites no law in support 

of this argument4 and therefore provides no substantive basis for relief, we 

discern no basis for relief. 

With its third argument, Wharton claims that the trial court erred in 

denying its motion for j.n.o.v. because the evidence overwhelmingly 

established that Wharton made no negligent misrepresentation. In fact, 

Wharton argues, the COI merely identified Penn as an additional insured 

without making any representations as to the scope of Penn’s coverage. 

Negligent misrepresentation requires proof of: (1) a 

misrepresentation of a material fact; (2) made under 

circumstances in which the misrepresenter ought to have known 

its falsity; (3) with an intent to induce another to act on it; and; 

(4) which results in injury to a party acting in justifiable reliance 

on the misrepresentation. 

Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999). Wharton claims no 

misrepresentation was made, let alone a misrepresentation with intent to 

induce another to act on it. 

Wharton relies on Donegal Mut. Ins. Co. v. Grossman, 195 F.Supp.2d 

657 (M.D.Pa. 2001) for persuasive authority. There, Pennco, the defendant 

trucking company, transferred the employment of its drivers to Transco, an 

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4

 Appellate Rule of Procedure 2119(c) requires citation to pertinent authority 

in support of arguments. Pa.R.A.P. 2119(c). 
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Indiana company, and then leased the drivers’ services from Transco. Transco 

was to provide workers compensation insurance for the drivers. A 

Pennsylvania workers compensation judge nonetheless decided that four 

drivers injured while working in Pennsylvania were Pennco employees for 

purposes of workers’ compensation coverage. Plaintiff Donegal, Pennco’s 

insurer, thereby became liable for the payment of workers' compensation 

benefits to the injured drivers. Pennco’s insurance application to Donegal did 

not seek coverage for the drivers, and an attached COI stated that Pennco’s 

drivers were employees of Transco and that Transco had obtained workers’ 

compensation insurance coverage for the drivers. See id. at 660-61. Donegal 

sued Pennco, and Pennco filed a third party complaint against Transco and 

Mark Insurance Agency, which had issued COIs identifying Transco’s insurance 

coverage for the drivers. The Federal District Court rejected Pennco’s 

negligent misrepresentation claim, writing that the COIs stated expressly that 

the recipient of the COI would receive coverage consistent with the underlying 

policy. Id. at 670. The COI at issue in Donegal and in the instant case 

contain the following, identical language: 

This is to certify that the policies of insurance listed below 

have been issued to the insured named above for the policy period 

indicated. Notwithstanding any requirement, term or condition of 

any contract or other document with respect to which this 

certificate may be issued or may pertain, the insurance afforded 

by the policies described herein is subject to all the terms, 

exclusions and conditions of such policies. 
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Id.; Amended Complaint, 11/25/20, at Exhibit H.5 In essence, then, in 

Donegal, as in the instant case, the COI stated that the insured’s coverage 

would be consistent with any policy exclusions regardless of any other written 

contract. On that basis, the Federal District Court in Donegal accepted the 

insurance broker’s argument that the plaintiff had failed to establish any 

misrepresentation or inaccuracy in the COI that could support the plaintiff’s 

claim for negligent misrepresentation. Donegal, 195 F.Supp.2d at 671. 

Wharton argues that the same result should obtain in this case. 

But the instant case is distinguishable. In addition to the language 

quoted just above, the COI represents that “Certholder is included as 

additional insured for general liability as respects work performed by named 

insured per policy form CG7524 12/10 as required by written contract.” 

Amended Complaint, 11/25/20, at Exhibit H. And, as explained above, the 

written contract between Penn and Longford provided that Longford would 

hold Penn harmless “from and against all claims for damages arising out of 

the performance of Subcontractor’s duties under this Agreement[.]” Id. at 

Exhibit B, ¶ 7(a). The record reveals that Susan Yigiter, who issued the COI 

on behalf of Wharton, testified that she did not recall reviewing endorsement 

CG-7524 in its entirety to determine whether it contained any exclusions or 

otherwise complied with the requirements set forth in the Penn/Longford 

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5

 The COI is attached to Penn’s Amended Complaint as Exhibit H. 
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contract prior to issuing the COI. N.T. Trial, 4/1/22, at 70, 75-76. Penn was 

never informed that Longford’s Harleysville liability policy provided only 

excess coverage to Penn. Id. at 76. Considering these facts in light of the 

standard of review, which requires us to consider the record in the light most 

favorable to Penn, as verdict winner, and granting Penn all reasonable 

inferences (Greco, 199 A.3d at 430), the record supports a finding that 

Wharton was negligent with regard to its representation in the COI that the 

terms of the endorsement were “as required by contract.” That is, the jury 

could reasonably have concluded that Penn reasonable expected primary, and 

not excess coverage; that Wharton’s representations on the COI were 

therefore negligent representations of material fact made with the intent of 

inducing Penn’s reliance thereon; and that Penn relied to its detriment on 

Wharton’s representations. We discern no reversible error in the trial court’s 

decision to deny Wharton’s j.n.o.v. motion. 

Next, Wharton argues that the trial court erred in permitting Penn’s 

snow and ice management expert to testify about contract interpretation. 

Admission of expert testimony is within the discretion of the trial court. 

Nazarak v. Waite, 216 A.3d 1093, 1111 (Pa. Super. 2019). We reverse only 

if the trial court abuses its discretion. Wharton does not make an abuse of 

discretion argument in its brief. Wharton notes that contract interpretation is 

a question for the courts, not an issue of fact to be submitted to the jury. 

Pops PCE TT, LP. V. R&R Restaurant Grp., LLC, 208 A.3d 79, 87 (Pa. 
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Super. 2019), appeal denied, 223 A.3d 656 (Pa. 2020). Wharton claims the 

trial court erred in permitting the jury to interpret the Penn/Longford contract 

and in allowing an unqualified expert testimony on its proper interpretation. 

Penn produced the testimony of Jeffrey Evans, who co-owns a snow and 

ice removal company, and who has been in the snow and ice removal business 

for 50 years. N.T. 4/1/22, at 86-87. Evans conceded that he was “not an 

expert in insurance[,]” and that he had no experience as a broker, agent, 

underwriter, or claims handler. Id. at 93. The trial court admitted Evans’ 

testimony for the limited purpose of explaining “snow and ice management 

and for some testimony regarding contractual obligations that a snow and ice 

company might make or would make with regards to protecting itself.” Id. at 

100. To that end, Evans testified that Longford, as the “boots-on-the-ground” 

subcontractor, is expected to carry primary insurance with the contactor as 

an additional insured. Id. at 106. According to Evans, the language in ¶ 7(b) 

of the Penn/Longford contract is industry standard, and that he has never 

seen a contract specify that the subcontractor’s insurance must be primary. 

Id. at 102-05. 

In essence, Evans’ testimony established the industry standard for the 

insurance requirements included in contracts such as the Penn/Longford 

contract. By stating that the pertinent portions of the Penn/Longford contract 

are industry standard, and that the expectation is for the general contractor 

to have primary coverage as an additional insured on the subcontractor’s 
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policy, Evan’s did not, contrary to Wharton’s argument, offer a legal 

interpretation of any portion of the Penn/Longford contract. Wharton’s fourth 

argument fails. 

In its final argument, Wharton claims the jury’s verdict was against the 

weight of the evidence. Wharton argues that, because Penn’s own negligence 

was responsible for Ghant’s injury, Penn would not have been covered even if 

it had primary coverage under Longford’s Harleysville policy. As noted above, 

the evidence in this case reflected alternate bases on which Harleysville denied 

coverage. In one scenario, Ghant’s injuries were due to Penn’s own 

negligence. In the other, Penn’s insurance through Longford’s policy was 

excess only. These facts were presented to the jury, and the jury found a 

breach of duty based on Wharton’s failure to procure primary coverage for 

Penn as an additional insured under Longford’s policy. Thus, Wharton’s weight 

of the evidence argument rests on its own favorable interpretation of the facts, 

and on its assertion, already rejected above, that excess coverage was 

sufficient to discharge its obligations to Penn. This argument fails.6 

For the foregoing reasons, we discern no reversible error in the trial 

court’s denial of Wharton’s motion for judgment notwithstanding the verdict. 

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6

 We note, also, that Wharton has failed to develop its weight of the evidence 

argument with citation to pertinent authority, as required by Pa.R.A.P. 

2119(b). Wharton argument includes only two citations, the first to establish 

that it need not have raised this issue before the jury was discharged, and the 

second to support its conclusionary argument that a new trial is warranted so 

that right may be given another opportunity to prevail. 
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Judgment affirmed. 

Date: 6/27/2024